No Monday Miscellany this week. Between sick kids and other personal stuff, things have been a bit too hectic. Instead, you'll get the Tuesday Trashheap. (Nothing like a little alternative alliteration before caffeine... although that last one technically was not alliterative.)
- Just a quick thought on the legal motivations for S&S's big PR gaffe: In one sense, it reminds me a great deal of the "Management cannot accept responsibility for damaged or lost property" at a hotel/restaurant hat-and-coat check. The sign is there as much to deter people from filing claims (which, as any law student who has completed the first-year property class's section on bailment knows, do have some merit) as anything else. The proposed language makes it appear that only the publisher has the right to terminate the contract... when, in fact, there's a limited-time right for many authors to do so enshrined in § 203 (for current works) of the Copyright Act. In fact, some might argue that by tying more rights up, those rights become part of the transfer subject to revocation,1 instead of derivative works that (under subsection (b)(1)) are not affected by the notice.
- Not content with screwing up on its contracts, now S&S wants to rely on prerelease publicity through an Internet-based "prediction auction" site MediaPredict.com to determine what/how/when/how widely to release new books. If that sounds a lot like Hollywood's obsession with how well a film "opens" as a prediction of its ultimate profitability, it probably should; after all, S&S is now owned by and directly supervised by Hollywood, in the latest reorganization of the Redstone media empire. Curious, indeed, that this "partnership" is with a company in Chicago, that hides its identity behind a semianonymous domain name registration, but is nonetheless hosted on a machine in New York... that appears to be in the same four-city-block area as S&S's own server (although, admittedly, truly verifying physical location requires using some tools that I'm not willing to deploy in this effort). That sounds like more than a mere "partnership" to me. And, as icing on the cake, consider the "patents pending" warning at the bottom of the "partner"'s webpage, for patents that probably have limited (if any) validity under the KSR decision. Do I detect more than a whiff of "misuse of intellectual property rights in furtherance of unlawful monopolization schemes" here? Even with these allergies, my nose isn't that stuffed up.
- What can I say to Mark Helprin's screed (link to original embedded there) proposing perhaps somewhat tongue-in-cheek perpetual copyright, on the ground that it should be treated like any other property right? I'd probably start with "Jane, you ignorant slut" and go downhill from there. Leave aside, for the moment, the Constitutional imperative that time be "limited." Leave aside that "one nanosecond before the heat-death of the universe" is, in fact, a literal limit. Ask, instead, what Helprin is really trying to accomplish. Reading between the lines of his essay, I think he's far less concerned about the income from ancient properties than he is about their identification. That is, he wants droit d'auteur, as exists in the copyright law of almost all nations except the US. In short, it's not the copyright; it's the recognition and credit. Or, at least, it's not the copyright as US law defines that nebulous thingy.
- This is one of my many objections to sloppy drafting in the 1976 Act. Although the section calls it a "termination" right and that word makes sense, in its ordinary English-language usage it functions more like a "revocation" under the common law of contracts than it does a termination. And, considering that the subject of the section is not copyright, but contract rights, it would have been better advised to call it a "revocation"... particularly since it doesn't terminate everything.